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Report No. 88

Governmental Privilege in Evidence: Sections 123-124 and 162, Indian Evidence Act, 1872 and Articles 74 and 163 of the Constitution

Contents
Chapter 1 Introductory
1.1 The subject
2. The reference
3 Public law in its procedural aspect
4. Privilege
5. The State
6. Section 123 and its predecessor
7. Liability of the State
8. History and rationale
9. Executive privilege-U.S.A
10. English law-injury to public interes
11. No separate privilege in England
12. The significance of privilege
13. The cost of privilege
14. Balancing of conflicting considerations
15. Scheme of discussion
16. Previous report
Chapter 2 Present Law in India
2.1. Scope of the present Report and earlier Report of the Law Commission
2. Scope of the openness in Government
3. Comparative developments
4. Indian law-sections 123 and 124, Evidence Act
5. Sections 123-124 compared
6. Overlapping between the two and its possible consequences
7. Section 162
8. Recommendations made in Report on Evidence Act
9,10. Then, as regards section 124, the recommendation was to revise it as under
11. Constitutional provisions
12. Succeeding Chapters of the Report
Chapter 3 The General Ambit of The Privilege: "Affairs of State"
3.1. Sections 123-Affairs of State
2. Routine documents
3. Security of the State
4. Ministerial advice
5. Obscurity as to income-tax papers
6. Departmental inquiries
7. Imprecision
8. Injury to public interest
Chapter 4 The Authority who Can Claim The Privilege
4.1,2. The head of the Department
Chapter 5 The Authority which Decides The Question of Privilege
5.1. Indian and English law
2. Need to vest power in the court
3. Defect in the present section
4. Supreme Court judgment
Chapter 6 The Materials for Claiming and Deciding The Privilege
6.1. Materials
2. Position regarding production
3. Practice in India as to affidavits
4. Andhra case
Chapter 7 Machinery for Determination of The Privilege
7.1. Section 162 analysed
2. Production
3. Inspection by the court and production of the document for inspection
4. Documents not in possession or power
5. Decision of objection
6. Machinery
7. Anomaly
8. Supreme Court case
9. Translation
Chapter 8 The Procedural Codes
8.1. Right to appeal-need for
2. Forum of appeal
3. Lord Reid's views as to appeal
4. Wigmore's view
5. Suggested provision
Chapter 9 Constitutional Provisions
9.1. Article 74-Advice given by Ministers to the President
2. Need for protection regarding materials constituting the reasons
3. Supreme Court case
4. Another view possible
5. Material for reconsideration of the advice
6. Need for amendment
7. Materials referred to in the advise tendered by Members
8. Recommendations as to Articles 74 and 163 of the Constitution
Chapter 10 Brief Comparative Survey
I. General observations
10.1. General trends witnessed in England and other countries
2. England
II. English Law
3,4,5. The process of evolution
6,7. The principle
8. National security
9. Other national interest
10. Communications in public service
11. Residual categories
12. Cabinet minutes
13. Police information
14. Criminal cases
15. Public interest-suggestion for categorisation
16. Class-content distinction
17. Categorisation not favoured in England
18. Procedural aspects
19. Arranging of parties not materials
III. Australia and Canada
20,21. Australia and Canada
22,23. Legislative reaction in Australia
24. New South Wales Amendment
25. Canada
26. Legislative reactions in Canada-Federal Court Act
IV. U.S.A.
27. Position in U.S.A
28. The decision of 1974
29. Draft Federal Rules
30. Obscurity of position
31. Draft Federal Rules of Evidence
32. "Secrets of State" and "Official information"
33. Practice in U.S.A
34. Secrecy in Government and U.S. Developments
Chapter 11 Recommendations
Recommendations


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